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Smith v. Hanuska

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


September 11, 2009

STEWART C. SMITH, PLAINTIFF
v.
JOHN HANUSKA, ET AL., DEFENDANTS

The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

ORDER

AND NOW, this 11th day of September, 2009, upon consideration of the report of the magistrate judge (Doc. 11), to which objections were filed, (see Doc. 19), recommending that plaintiff's complaint be dismissed in part pursuant to 28 U.S.C. § 1915, and, following an independent review of the record, it appearing that the magistrate judge correctly identified claims that plaintiff failed to adequately plead, but that the recommendation does not include a provision allowing plaintiff to amend his complaint,*fn1 and that the report lacks clarity regarding the recommended disposition of plaintiff's false imprisonment claim,*fn2 it is hereby ORDERED that:

1. The report and recommendation of the magistrate judge (Doc. 11) is ADOPTED in part and REJECTED in part as follows:

a. The report is ADOPTED insofar as it recommends that plaintiff be permitted to proceed with the following: (1) false arrest claims against defendants John Hanuska ("Hanuska") and David Bixler ("Bixler"), and (2) a claim asserting illegal search and seizure by defendant Hanuska.

b. The report is ADOPTED insofar as it recommends that plaintiff's claims alleging conspiracy, violations of due process, violations of equal protection,*fn3 malicious prosecution,*fn4 excessive force,*fn5 and violations of various state laws be dismissed.

c. The report is REJECTED insofar as it does not afford plaintiff an opportunity to amend his complaint, see Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (holding that a pro se litigant must be informed of his right to amend a complaint when doing so may potentially cure any deficiencies therein), and insofar as it recommends dismissal of plaintiff's false imprisonment claim against defendants Hanuska and Bixler.

2. Plaintiff shall be permitted to file, on or before October 9, 2009, an amended complaint that complies with this order.

3. The above-captioned case is REMANDED to the magistrate judge for further proceedings.


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